# BHARAT SANCHAR NIGAM LIMITED v. TELECOMREGULATORY AUTHORITY OF INDIA AND OTHERS

- **Citation:** [2013] 12 S.C.R. 999
- **Court:** Supreme Court of India
- **Decided:** 2013-12-06
- **Case number:** Civil Appeal No. 5253 of 2010
- **Bench:** G.S. Singhvi, Dr. B.S. Chauhan, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bharat-sanchar-nigam-limited-v-telecomregulatory-authority-of-india-and-others-28953
- **Pages:** 121

## Headnote

A
B
Telecom Regulatory Authority of India Act, 1997:
C
s.36 - Power of Telecom Regulatory Authority of India
(Authority) to frame regulations - Held: Under sub-s. (1) of
s.36, the Authority can make regulations to carry out the
purposes of the Act specified in various provisions of the Act D
including ss. 11, 12 and 13 -
The Authority can make
regulations which may empower it to issue directions of
general character applicable to seNice providers and others
and it cannot be said that by making regulations u/s 36(1) ,
the Authority has encroached upon the field occupied by E
s.12(4) and 13 -
Power vested in the Authority u/s 36(1) to
make regulations is wide and peNasive -
Exercise of this
power is only subject to the provisions of the Act and the Rules
framed u/s 35 thereof- It is not controlled or limited by s.36(2)
or ss.11, 12 and 13 -
There is nothing in the language of
s.36(2) from which it can be inferred that provisions contained
F
therein control the exercise of power by Authority u/s 36(1) or
that s.36(2) restricts the scope of s.36(1) -
It is settled law
that if power is conferred upon an authority/body to make
subordinate legislation in general terms, the particularization
of topics is merely illustrative and does not limit the scope of G
general power - Interpretation of Statutes -
Delegated
legislation - Doctrine of occupied field.
ss. 33, 36 and 37 -
Power of Authority to frame
999
H
1000
SUPREME COURT REPORTS
[2013) 12 S.C.R.
A regulations - Held: The power u/s 36 is legislative -This power
is non-delegable -
By virtue of s.37, regulations made under
the Act are placed on par with the rules which can be framed
by Central Government uls 35 and being 7n the nature of
subordinate legislation, rules and regulations have to be laid
B before both the Houses of Parliament which can annul or
modify the same -
Thus, regulations framed by Authority can
be made ineffective or modified by Parliament and by no
other body - Delegated legislation.
s.14(b)(as amended by Amendment Act, 2000) - Judicial
C review of regulations framed by Authority - Held: In exercise
of the power vested in TDSAT uls 14(b), it does not have the
jurisdiction to entertain the challenge to the regulations
framed by the Authority uls 36 -
The amendment is intended
to vest original jurisdiction of the Authority in TDSA T and the
D same is achieved bys. 14(a) -
The appellate jurisdiction
exercisable by High Court is also vested in TDSA T by virtue
of s.14(b) - Since High Court while hearing appeal did not
have the power of judicial review of subordinate legislation,
the transferee adjudicatory forum, i.e., TDSAT cannot
E exercise that power u/s 14(b)- Telecom Regulatory Authority
of India (Amendment) Act, 2000.
In the instant appeals, a two Judge Bench made a
reference to the larger Bench for determination of certain
F substantial questions of law of public importance. When
the matters were listed before the three-Judge Bench,
counsel for the parties agreed that a preliminary issue
relating to jurisdiction of the Telecom Disputes Settlement
Appellate Tribunal (TDSAT) to entertain challenge to the .
regulations framed by the Telecom Regulatory Authority
G of India (Authority) may be decided first. Therefore, the
question for consideration before the Court was: Whetlier
in exercise of the power vested in it uls 14(b) of the Act,
TDSAT has the jurisdiction to entertain challenge to the
regulations framed by the Authority uls 36 of the Act.
H
BHARAT SANCHAR NIGAM LTD v. TELECOM
1001
REGULATORY AUTH. OF INDIA
Answering the reference, the Court
A
HELD:1.1. Under the Telecom Regulatory Authority
of India Act, 1997 (un-amended Act), the Telecom
Regulatory Authority of India had three types of functions,
namely, recommendatory functions, regulatory functions
B
and adjudicatory functions. With a view to overcome the
difficulties experienced in the implementation of the Act,
certain amendments were brought by the Telecom
Regulatory Authority of India (Amendments)

## Text

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\
[2013] 12 S.C.R. 999
BHARAT SANCHAR NIGAM LIMITED
v.
TELECOMREGULATORY AUTHORITY OF INDIA AND
OTHERS
(Civil Appeal No. 5253 of 2010)
DECEMBER 6, 2013
[G.S. SINGHVI, DR. B.S. CHAUHAN AND FAKKIR
MOHAMED IBRAHIM KALIFULLA, JJ.]
A
B
Telecom Regulatory Authority of India Act, 1997:
C
s.36 - Power of Telecom Regulatory Authority of India
(Authority) to frame regulations - Held: Under sub-s. (1) of
s.36, the Authority can make regulations to carry out the
purposes of the Act specified in various provisions of the Act D
including ss. 11, 12 and 13 -
The Authority can make
regulations which may empower it to issue directions of
general character applicable to seNice providers and others
and it cannot be said that by making regulations u/s 36(1) ,
the Authority has encroached upon the field occupied by E
s.12(4) and 13 -
Power vested in the Authority u/s 36(1) to
make regulations is wide and peNasive -
Exercise of this
power is only subject to the provisions of the Act and the Rules
framed u/s 35 thereof- It is not controlled or limited by s.36(2)
or ss.11, 12 and 13 -
There is nothing in the language of
s.36(2) from which it can be inferred that provisions contained
F
therein control the exercise of power by Authority u/s 36(1) or
that s.36(2) restricts the scope of s.36(1) -
It is settled law
that if power is conferred upon an authority/body to make
subordinate legislation in general terms, the particularization
of topics is merely illustrative and does not limit the scope of G
general power - Interpretation of Statutes -
Delegated
legislation - Doctrine of occupied field.
ss. 33, 36 and 37 -
Power of Authority to frame
999
H
1000
SUPREME COURT REPORTS
[2013) 12 S.C.R.
A regulations - Held: The power u/s 36 is legislative -This power
is non-delegable -
By virtue of s.37, regulations made under
the Act are placed on par with the rules which can be framed
by Central Government uls 35 and being 7n the nature of
subordinate legislation, rules and regulations have to be laid
B before both the Houses of Parliament which can annul or
modify the same -
Thus, regulations framed by Authority can
be made ineffective or modified by Parliament and by no
other body - Delegated legislation.
s.14(b)(as amended by Amendment Act, 2000) - Judicial
C review of regulations framed by Authority - Held: In exercise
of the power vested in TDSAT uls 14(b), it does not have the
jurisdiction to entertain the challenge to the regulations
framed by the Authority uls 36 -
The amendment is intended
to vest original jurisdiction of the Authority in TDSA T and the
D same is achieved bys. 14(a) -
The appellate jurisdiction
exercisable by High Court is also vested in TDSA T by virtue
of s.14(b) - Since High Court while hearing appeal did not
have the power of judicial review of subordinate legislation,
the transferee adjudicatory forum, i.e., TDSAT cannot
E exercise that power u/s 14(b)- Telecom Regulatory Authority
of India (Amendment) Act, 2000.
In the instant appeals, a two Judge Bench made a
reference to the larger Bench for determination of certain
F substantial questions of law of public importance. When
the matters were listed before the three-Judge Bench,
counsel for the parties agreed that a preliminary issue
relating to jurisdiction of the Telecom Disputes Settlement
Appellate Tribunal (TDSAT) to entertain challenge to the .
regulations framed by the Telecom Regulatory Authority
G of India (Authority) may be decided first. Therefore, the
question for consideration before the Court was: Whetlier
in exercise of the power vested in it uls 14(b) of the Act,
TDSAT has the jurisdiction to entertain challenge to the
regulations framed by the Authority uls 36 of the Act.
H
BHARAT SANCHAR NIGAM LTD v. TELECOM
1001
REGULATORY AUTH. OF INDIA
Answering the reference, the Court
A
HELD:1.1. Under the Telecom Regulatory Authority
of India Act, 1997 (un-amended Act), the Telecom
Regulatory Authority of India had three types of functions,
namely, recommendatory functions, regulatory functions
B
and adjudicatory functions. With a view to overcome the
difficulties experienced in the implementation of the Act,
certain amendments were brought by the Telecom
Regulatory Authority of India (Amendments) Act, 2000.
One of the important features of the Amendment Act was
the establishment of a Tribunal known as the Telecom
C
Disputes Settlement and Appellate Tribunal (TDSAT). [Para
20 and 26] [1044-G; 1045-A-B; 1079-E; 1080-E; 1081-C]
1.2. After the amendment of 2000, the Authority can
either suo motu or on a request from the licensor make
D
recommendations on the subjects enumerated in
. s.11(1)(a)(i) to (viii). Under s.11 (1)(b), the authority is
required to perform nine functions enumerated in clauses
(i) to (ix) thereof. In these clauses, different terms like
'ensure', 'fix', 'regulate' and 'lay down' have been used.
E
The use of the term 'ensure' implies that the Authority can
issue directions on the particular subject. For effective
discharge of functions under various clauses of s. 11(1)
(b), the authority can frame appropriate regulations. The
term 'regulate' contained in sub-clause (iv) shows that for
F
facilitating arrangement amongst service providers for
sharing their revenue derived from providing
telecommunication services, the Authority can either
issue directions or make regulations. [para 27]
~~1~~
G
1.3. The term 'regulate' is elastic enough to include
the power to issue directions or to make regulations and
the mere fact that the expression "as may be provided
in the regulations" appearing in clauses (vii) and (viii) of
s.11 (1 )(b) has not been used in other clauses of that subH
1002
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A section does not mean .that the regulations cannot be
framed uls 36(1) on the subjects specified in clauses (i)
to (vi) of s. 11 (1 )(b). In fact, by framing regulations uls 36,
the Authority can facilitate the exercise of functions under
various clauses of s.11 (1 )(b) including clauses (i) to (vi).
B [para 35] [1087-G-H; 1088-A-B]
V.S. Rice & Oil Mills v. State of A.P. 1964 SCR 456 =
AIR 1964 SC 1781; State of Tamil Nadu v. Hind Stone 1981
(2) SCR 742 = (1981) 2 SCC 205; K. Ramanathan v. State
of Tamil Nadu 1985 (2) SCR 1028 = (198.5) 2 sec 116;
C Jiyajeerao Cotton Mills Ltd. v. M.P. Electricity Board 1988 (2)
Suppl. SCR 978 = 1989 Supp (2) SCC 52; Deepak Theatre
v. State of Punjab 1991 (3) Suppl. SCR 242 = 1992 Supp
(1) SCC 684; Quarry Owners' Association v. State of Bihar
2000 (2) Suppl. SCR 211 = (2000) 8 sec 655; U.P. Coop.
D Cane Unions Federation v. West U.P. Sugar Mills
Association 2004 (2) Suppl. SCR 238 = (2004) 5 SCC 430referred to.
Webster's Third New International Dictionary, Vol. II, p.
E 1913 and Shorter Oxford Dictionary, Vol. II, 3rd Edn., p. 1784
- referred to.
1.4. Under sub-s. (1) of s.36, the Authority can make
regulations to carry out the purposes of the Act specified
in various provisions of the Act including ss.11, 12 and
F 13. The exercise of power uls 36(1) is hedged with the
condition that the regulations must be consistent with the
Act and the Rules made thereunder. There is no other
restriction on the power of the Authority to make
regulations. In terms of s.37, the regulations are required
G to be laid before Parliament which can either approve,
modify or annul the same. Section 36(2), which begins
with the words "without prejudice to the generality of the
power under sub-s. (1)" specifies various topics on which
regulations can be made by the Authority. Three of these
H topics relate to meetings of the Authority, the procedure
BHARAT SANCHAR NIGAM LTD v. TELECOM
1003
REGULATORY AUTH. OF INDIA
to be followed at such meetings, the transaction of A
business at the meetings and the register to be
maintained by the Authority. The remaining two topics
specified in Clauses (e) and (f) of s. 36(2) are directly
referable to s.11 (1 )(b)(viii) and 11 (1 )(c). These are
substantive functions of the Authority. However, there is
B
nothing in the language of s.36(2) from which it can be
inferred that the provisions contained therein control the
exercise of power by the Authority u/s 36(1) or that s.36(2)
restricts the scope of s.36(1 ). [para 36] [1088-B-F]
1.5. It is settled law that if power is conferred upon C
an authority/body to make subordinate legislation in
general terms, the particularization of topics is merely
illustrative and does not limit the scope of general power.
[para 37] [1088-G]
Afzal Ullah v. State of Uttar Pradesh 1964 (4) SCR 991;
Rohtak Hissar District Electricity Supply Company Ltd. v.
State of Uttar Pradesh and others 1966 SCR 863 =AIR 1966
D
SC 1471; Santosh Kumar Jain v. State 1951 SCR 303 =AIR
1951 SC 201; D.K. Trivedi and Sons v. State of Gujarat 1986
E
SCR 479 1986 (Supp) SCC 20; Academy of Nutrition
Improvement v. Union of India 2011 (8) SCR 680 = (2011) 8
sec 274 - relied on.
Emperor v. Sibnath Banerji AIR 1942 PC 156 - referred
F
to.
1.6. Section 11 (1 )(b)(iv) specifically postulates making
of regulations for discharging the functions specified in
those clauses. Section 11 (2), which contains nonobstante clause vis-a-vis the Indian Telegraph Act, 1885,
G
lays down that the Authority may, from time to time, by
order notify the rates at which the telecommunication
services within or outside India shall be provided under
the Act subject to the limitation specified in s.11 (3). Under
s.12(1), the Authority is empowered to issue order and
H
1004
SUPREME COURT REPORTS
(2013] 12 S.C.R.
A call upon any service provider to furnish such information
or explanation relating to its affair or appoint one or more
persons to make an inquiry in relation to the affairs of any
service provider and direct inspection of the books of
account or other documents of any service provider.
B Sections 12(4) and 13 of the Act are only enabling
provisions. This is evinced from the expressions "shall
have the power" used in s.12(4) and "The Authority may"
used in s.13. [para 43] [1096-C-G]
1.7. In terms of s.12(4), the Authority can issue such
C directions to service providers, as it may consider
necessary, for proper functioning by service providers.
Section 13 lays down that the Authority may for
discharge of its functions u/s 11(1), issue such directions
to the service providers, as it may consider necessary.
D The scope of this provision is limited by the proviso,
which lays down that no direction u/s 12(4) or s.13 shall
be issued except on matters specified in s.11(1)(b). [para
43] [1096-G-H; 1097 ·A]
E
1.8. It is, thus, clear that the Authority, in discharge
of its functions, can issue directions to the service
providers.The Act speaks of many players like the
licensors and users, who do not come within the ambit
of the term "service provider". If the Authority has to
F discharge its functions qua the licensors or users, then
it will have to use powers under provisions other than
ss.12(4) and 13. [para 43] [1097-A-B]
1.9. Therefore, in exercise of power u/s 36(1), the
Authority can make regulations which may empower it to
G issue directions of general character applicable to
service providers and others and it cannot be said that
by making regulations u/s 36(1) the Authority has
encroached upon the field occupied by s:12(4) and 13 of
the Act. [para 43] [1097-C-D]
H
BHARAT SANCHAR NIGAM LTD v. TELECOM
1005
REGULATORY AUTH. OF INDIA
1.10. A plain reading of the language of s.33 makes
A -
it clear that the Authority can, by general or special order,
delegate to any member or officer of the Authority or any
other person such of its powers and functions under the
Act except the power to settle disputes under Chapter IV
or make regulations u/s 36. This means that the power
B
to make regulations u/s 36 is non-delegable. The reason
for excluding s. 36 from the purview of s.33 is that the
power u/s 36 is legislative as opposed to administrative.
By virtue of s.37, the regulations made under the Act are
placed on par with the rules which can be framed by the c
Central Government u/s 35 and being in the nature of
subordinate legislations, the rules and regulations have
to be laid before both the Houses of Parliament which
can annul or modify the same. Thus, the regulations
framed by the Authority can be made ineffective or 0
modified by Parliament and by no other body. [para 44)
[1097-D-G]
1.11. This Court, therefore, holds that the power
vested in the Authority u/s 36(1) to make regulations is wide
· and pervasive. The exercise of this power is only subject
E
to the provisions of the Act and the Rules framed u/s 35
thereof. There is no other limitation on the exercise of
power by the Authority u/s 36(1). It is not controlled or
limited by s.36(2) or ss.11, 12 and 13. [para 45) [1098-A-B]
2.1. Under the un-amended s.14(1 ), the Authority
F
could decide disputes among service providers and
between service providers and a group of consumers. In
terms of s.14(2) (unamended), the bench constituted by
the Chairperson of the Authority could exercise powers
and authority which were exercisable earlier by the civil G
court on technical compatibility and inter-connections
between
service
providers,
revenue
sharing
arrangements between different service providers, quality
of telecommunication services and interest of
consumers. However, the disputes specified in clauses
H
1006
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A (a), (b) and (c) of s.14(2) could not be d1icided by the
bench constituted by the Chairperson. [para 49] [1100-FH; 1101-A]
2.2. Since the mechanism provided for settlement of
disputes u/s 14 of the unamended Act was not
8 satisfactory, Parliament substituted that section and
facilitated establishment of an independent adjudicatory
body known as TDSAT. Clause (a) of amended s.14
confers jurisdiction upon TDSAT to adjudicate any
dispute between a licensor and licensee, between two or
C more service providers and between a service provider
and a group of consumers. Three exceptions to the
adjudicatory power of TDSAT relate to the cases: which
are subject to the jurisdiction of Monopolies and
Restrictive Trade Practices Commission, the complaint of
D an individual consumer which could be maintained under
the consumer forums established under the Consumer
Protection Act, 1986 and dispute between Telegraph
Authority and any other person referred t'o in s.78(1) of
the Indian Telegraph Act, 1885. In terms of clause (b) of
E s. 14 (amended), TDSAT is empowered to hear and
dispose of appeal against any direction, decision or
order of the Authority. Section 14A(1) provides for making
of an application to TDSAT for adjudication of any
dispute referred to in s.14(a). Section 14A(2) and (3)
F provides for filing an appeal against any direction,
decision or order made by the Authority and also
prescribes the period of limitation. [para 50] [1101-B-F]
2.3. The primary objective of the 2000 amendment
was to separate adjudicatory functions of the Authority
G from its administrative and legislative functions and ward
off the criticism that the one who is empowered to make
regulations and issue directions or pass orders is
clothed with the power to decide legality thereof. The
word 'dinection' used in s.14(b) is referable to ss.12(4) and
H 13. The word 'order' is referable to ss.11(2) and 12(1). The
BHARAT SANCHAR NIGAM LTD v. TELECOM
1007
REGULATORY AUTH. OF INDIA
word 'decision' has been used in s.14-A(2) and (7). This
A
is because the proviso to s.14-M postulates limited
adjudicatory function of the Authority in respect of the
disputes being adjudicated under Chapter IV before the
2000 amendment. This proviso was incorporated in s.14M to avoid a hiatus between the coming into force of the
B
2000 amendment and the establishment of TDSAT. [para
51] [1102-C-E]
2.4. None of the words used in s.14(b) have anything
to do with adjudication of disputes. Before the 2000
C
Amendment, the applications were required to be filed u/
s 15 which also contained detailed procedure for deciding
tl•e same. While sub-s. (2) of s.15 used the word 'orders',
sub-ss. (3) and (4) thereof used the word 'decision'. In
terms of sub-s. (5), the orders and directions of the
Authority were treated as binding on the service D
providers, Government and all other persons concerned.
Section 18 provided for an appeal against any decision
or order of the Authority. Such an appeal could be filed
before the High Court. [para 52] [1102-F-H]
2.5. The amendment made in 2000 is intended to vest
the original jurisdiction of the Authority in TDSAT and the
same is achieved by s. 14(a). The appellate jurisdiction
exercisable by the High Court is also vested in TDSAT
E
by virtue of s.14(b). Section 14-N provides for transfer to
F
all appeals pending before the High Court to TDSAT and
in terms of Clause (b) of sub-s. (2), TDSAT was required
to proceed to deal with the appeal from the stage which
was reached before such transfer or from any earlier
stage or de novo as considered appropriate by it. [para
G
52] [1102-H; 1103-A-B]
2.6. Since the High Court while hearing appeal did
not have the power of judicial review of subordinate
legislation, the transferee adjudicatory forum, i.e., TDSAT
cannot exercise that power u/s 14(b). [para 52] [1103-C]
H
1008
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A
Cellular Operators Association of India v. Union of India
2002 (5) Suppl. SCR 222 = (2003) 3 SCC 186; Union of India
v. TATA Teleservices (Maharashtra) Ltd. 2007 (9) SCR 285
= (2007) 7 sec 517;. - held inapplicable.
8
L. Chandra Kumar v. Union of India 1997 (2)
SCR 1186 = (1997) 3 SCC 261· distinguished
2.7. In PTC India Ltd**., the Constitution Bench has
held that a regulation uls 178 of the Electricity Act, 2003
is made under the authority of delegated legislation and
C consequently its validity can be tested only in judicial
review proceedings before the courts and not by way of
appeal before the Appellate Tribunal. [para 58 and 60]
[1108-F-G; 1114-C-D]
0
**PTC India Ltd. v. Central Electricity Regulatory
Commission, (2010) 4 SCC 603 - followed.
Narinder Chand Hem Raj v. Lt. Governor, H.P. (1971) 2
SCC 747 and Indian Express Newspapers (Bombay) (P) Ltd.
v. Union of India 1985 (2) SCR 287 = (1985) 1 SCC 641 •
E referred to
Union of India v. Madras Bar Association 2010 (6)
SCR 857 = (2010) 11 SCC 1; State of Gujarat v. Gujarat
Revenue Tribunal Bar Association 2012 (10) SCR 816 =
F (2012) 10 sec 353: 2012 (10) SCALE 285 -
held
inapplicable.
2.8. In BPL Mobile Cellular Ltd*., the word 'directions'
used in s.29 of the Act was interpreted to include orders
and regulations in the context of the factual matrix of that
G case but the same cannot be read as laying down a
proposition of law that the words 'direction', 'decision' or
'order' used in s.14(b) would include regulation framed
under s.36, which are in the nature of subordinate
legislation. [para 57] [1108-E-F]
H
BHARAT SANCHAR NIGAM LTD v. TELECOM
1009
REGULATORY AUTH. OF INDIA
*Telecom Regulatory Authority of India v. BPL Mobile
A
Cellular Ltd. CA No. 6743 - distinguished.
2.9. This Court, therefore, holds that in exercise of the
power vested in it uls 14(b) of the Act, TDSAT does not
have the jurisdiction to entertain the challenge to the
B
regulations framed by the Authority uls 36 of the Act.
[para 64] [1118-H; 1119-A]
2.10. It is made clear that the aggrieved person shall
be free to challenge the validity of the regulations framed
uls 36 of the Act by filing appropriate petition before the
C
High Court. [para 65] [1119-B]
Hotel & Restaurant Association v. Star India (P) Ltd. 2006
(9) Suppl. SCR 602 = (2006) 13 SCC 753, Union of India v.
Association of Unified Telecom Service Providers of D
India 2011 (14) SCR 657 = (2011) 1 o sec 543; Delhi
Science Forum vs. Union of India (1996) 2 SCC 405; MTNL
v. TRAI AIR 2000 (Delhi) 208; Clariant International Limited
v. Security Exchange Board 2004 (3) Suppl. SCR 843 =
(2004) 8 SCC 524, and West Bengal Electivity Regulatory
E
Com'J'ission V; CESC Ltd (2002) 8 SCC 715 - cited.
Case Law Reference:
AIR 2000 (Delhi) 208
cited
2004 (3) Suppl. SCR 843 cited
para 13.3
para 13.3
2002 (5) Suppl. SCR 222 held inapplicablePara 13.3
(2002) 8 sec 115
cited
para 13.3
(1996) 2 sec 405
cited
para 17
1964 SCR 456
referred to
para 28
1981 (2) SCR 742
referred to
para 29
1985 (2) SCR 1028
referred to
para 30
F
G
H
1010
SUPREME COURT REPORTS
[2013] 12 S.C.R.
A
1988 (2) Suppl. SCR 978 referred to
1991 (3) Suppl. SCR 242 referred to
2000 (2) Suppl. SCR 211 referred to
para 31
para 32
para 33
para 34
para 37
para 38
para 39
para 40
para 41
para 42
B
c
D
2004 (2) Suppl. SCR 238 referred to
AIR 1942 PC 156
referred to
relied on
relied on
relied on
relied on
relied on
1964 (4) SCR 991
1966 SCR 863
1951 SCR 303
1986 SCR479
2011 (8) SCR 680
1997 (2) SCR 1186
(201 O) 4 sec 603
distinguished
Para 47
followed
para 47
2006 (9) Suppl. SCR 602 cited
para 48
E
2011 (14) SCR 657
cited
para 48
F
G
2010 (6) SCR 857
held inapplicable para 48
2007 (9) SCR 285
CA No. 6743
(1971) 2 sec 141
1985 (2) SCR 287
2012 (10) SCR 816
held inapplic:able Para 54
distinguished
para 56
referred to
referred to
para 59
para 59
held inapplicable para 63
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5253 of 2010.
From the Judgment & Order dated 28.05.2010 of the
Telecom Disputes Settlement and Appellate Tribunal (TDSAT)
H at New Delhi in Appeal No. 4 of 2007.
BHARAT SANCHAR NIGAM LTD v. TELECOM
1011
REGULATORY AUTH. OF INDIA
WITH
A
Civil Appeal Nos. 951-952, 3298, 3299, 4529, 5834-5836,
5837 and 6049 of 2005, 802, 2731, 2794 and 3504 of 2006,
4965-4966 of 2007, 177 and 598-599 of 2008, 5184, 5873,
6068, 6255, D28298 and T.C. No. 39 of 2010, Civil Appeal B
No. 271-281 of 2011.
R.F. Nariman, SG, Rakesh Khanna, ASG, Ramji
Srinivasan, Rakesh Dwivedi, Dr. A.M. Singhvi, Mukul Rohatgi,
Maneesha Dhir, Ritesh Kumar, Siddharth Patnaik, Amit Singh,
Siddarth Tyagi, Debopama Roy, K.P.S. Kohli, Manjul Bajpai, C
Shashwat Bajpai, Bina Gupta, Abhay A. Jena, Nakul Mehta,
Kawaljit Singh Bhatia, Vivek Paul Orien, E.G. Agrawala, Madhu
Sikri, Manali Singhal, Santosh Sachin, Abhijat P. Medh, Monika
Singhal, Prakhar Nishant, Mohit Auluck, Rajiv Mehta, Priyanka
Das, Manu Aggarwal, Sanjay Kapur, Anmol Chandan, Ashmi D
Mohan, Abhinav Mukerji, Gopal Jain, Navin Chawla, Abhishek
Kr. Jha, Devan Khanna, Ravi Sikri, Ayushya Kumar, Gargi
Khanna, Aditi Tripathi, Rachana Joshi lssar, Amreen Rasool for
the appearing parties.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. By an order dated 6.2.2007 passed
E
in Civil Appeal No. 3298 of 2005 - Telecom Regulatory
Authority of India (Authority) v. Bharat Sanchar Nigam Limited
(BSNL) and connected matters, a two Judge Bench made a
F
reference to the larger Bench for determination of the following
substantial questions of law of public importance:
1.
Whether in the event of any inconsistency between
the terms and conditions of the licenses issued G
under Section 4 of the Indian Telegraph Act, 1885
and the provisions of the Telecom Regulatory
Authority of India Act, 1997 (for short, 'the Act'), the
provisions of the Act would prevail in view of the
purpose and object for which the Act has been
H
1012
SUPREME COURT REPORTS
(2013] 12 S.C.R.
A
passed, i.e., for ensuring rapid development of
telecommunications in the country incorporating the
most modern technology and, at the same time,
protecting the interests of the consumers and the
service providers?
B
2.
Whether Authority has powers to fix the terms and
conditions of inter connectivity between service
providers, in respect of all the licenses, irrespective
of the fact whether licenses issued before or after
c
24.1.2000 - especially in view of the non-obstante
clause in sub-section (1) of Section 11 and subclause (ii) of Clause (b) of sub-section (I) of Section
11 of the TRAI (Amendment) Act of 2000?
3.
Whether Authority has no power to fix terms and
D
conditions of interconnectivity between service
providers in respect of licenses issued after
24.01.2000 including terms and conditions of
interconnection agreements - in view of, inter-alia,
the scheme laid down in the provisos to Section
E
11 (1) of the TRAI Act, 1997 as amended on
24.01.2000 and if it does not have any such power
what would be the harmonious construction at the
amended clause 11 ( 1 )(b )(ii) and the new scheme
more specifically embodied in the provisos?
F
4.
Whether under the amended provisions of the TRAI
Act, 1997 introduced w.e.f 24.01.2000 - the
harmonious construction of Section 11 (1 )(b )(ii) and
the scheme of the provisos to Section 11 (1) would
allow the Authority to have the power to fix the terms
G
and conditions of interconnectivity with respect to
licenses issued before 24.1.2000. only to the extent
the licensor (Govt. of India) accepts the
recommendations of the Authority for incorporation
in the new licenses, so as to achieve level playing
H
field between the service providers granted
BHARAT SANCHAR NIGAM LTD v. TELECOM
1013
REGULATORY AUTH. OF INDIA [G.S. SINGHVI, J.]
licenses before and after the amendment of the
A
TRAI Act?
5.
Whether the appeals are maintainable in the
present form?
2. The larger Bench heard the arguments on various dates
B
but released the cases vide order dated 19.10.2011.
Thereafter, by mistake the Registry listed all the rnatters before
a two Judge Bench. During the course of hearing, Shri A.S.
Chandhiok, learned senior advocate appearing for BSNL
invited the Court's attention to orders dated 6.2.2007 and
C
21.10.2010 and pointed out that the cases were earlier heard
by the larger Bench. Thereupon, the two Judge Bench directed
that the cases be posted before the larger Bench.
3. When the cases were listed before this Bench, learned
D
counsel for the parties agreed that a preliminary issue relating
to jurisdiction of the Telecom Disputes Settlement Appellate
Tribunal (TDSAT) to entertain challenge to the regulations
framed by the Authority may be decided before the questions
framed vide order dated 6.2.2007 are taken up for
E
consideration. Thereupon, the Court decided to hear the
arguments on the following question:
"Whether in exercise of the power vested in it under
Section 14(b) of the Act, TDSAT has the jurisdiction to
entertain challenge to the regulations framed by the
F
Authority under Section 36 of the Act.
4. For better appreciation of the arguments advanced by
learned counsel for the parties, we may notice the facts borne
out from the records of different appeals.
G
Civil Appeal Nos. 5253. 5184. 5873, 6068, 6255 of 2010 and
Civil Appeal No. 028298 of 2010
5.1. The delay in filing and re-filing C.A. No. D28298 of
2010 is condoned.
H
1014 SUPREME COURT REPORTS
[2013] 12 S.C.R.
A
5.2. These appeals have been filed by Bharat Sanchar
Nigam Limited (BSNL), Cellular Operators Association of India
(COAi), Association of Unified Telecom Service Providers of
India (AUSPI), the Authority, M/s. Sistema Shyam TeleServices
Limited and Mahanagar Telephone Nigam Limited (MTNL),
B respectively, against order dated 28.5.2010 passed by TDSAT
whereby the appeal preferred by BSNL against the
Telecommunication Interconnection (Port ChargElS) Amendment
Regulation (1 of 2007) was allowed and the Authority was
directed to give fresh look at the regulations and BSNL was
c directed not to claim any amount from any operator during the
interregnum, i.e., from the date of coming into force of the
regulations and the date of the order.
5.3. A perusal of the record shows that port charges came
to be prescribed in Schedule 3 of the Telecommunication
D Interconnection (Charges and Revenue Sharing) Regulations,
1999, which came into force on 28.5.1999. By virtue of Clause
8, the regulations were given overriding effect qua the
interconnection agreements. MTNL challenged the 1999
regulations before the Delhi High Court in Civil Writ Petition No.
E 6543/1999, which was allowed by the Division Bench of the
High Court vide order dated 17.1.2000 [MTNL v. TRAI, AIR
2000 (Delhi) 208] and it was held that the Regulations framed
under Section 36 of the Act could not be given overriding effect.
Thereafter, the Authority framed the Telecommunication
F Interconnection (Port Charges) Amendment Regulations (6/
2001). The port charges were specified in the schedule to the ,
amended regulations. The amended regulations were
challenged in Appeal Nos.11/2002 and 31/2003, which were
allowed by TDSAT vide orders dated 27.4.2005 and 3.5.2005
G respectively.
5.4. In view of the aforesaid orders ofTDSAT, the Authority
sought response of various service providers for review of port
charges. In that process, BSNL raised objection to the
H jurisdiction of the Authority to vary the terms and conditions of
BHARAT SANCHAR NIGAM LTD v. TELECOM
1015
REGULATORY AUTH. OF INDIA [G.S. SINGHVI, J..J
interconnection agreements or the contractual rates. On
A
2.2.2007, the Authority issued Telecommunication
Interconnection (Port Charges) Amendment Regulation (1 of
2007) reducing the port charges required to be paid by private
telecom operators to BSNL by about 23-29%. BSNL
challenged Notification dated 2.2.2007 in Appeal No. 4/2007.
B
By an order dated 28.5.2010, TDSAT allowed the appeal of
BSNL and issued directions to which reference has been made
herein above.
Civil Appeal Nos. 951-952/2005
c
6.1. Civil Appeal No. 951/2005 has been filed by the
Authority against order dated 21.4.2004 by which TDSAT
allowed Appeal No.2/2004 filed by BSNL questioning direction
dated 31.12 .2003 issued under Section 13 read with Section
11(1)(b) of the Act. Civil Appeal No. 952/2005 has been filed
D
by the Authority against order dated 10.8.2004 by which
TDSA T dismissed Petition No.2/2004 for review of order dated
21.4.2004.
6.2. On receiving information that some operators were
E
disconnecting Points of Interconnection (Pol) for the reason of
1 non payment of Interconnection Usage Charges and other such
reasons, the Authority issued direction dated 31.12.2003 under
Section 13 read with Section 11(1)(b) conveying to all service
providers that disconnection of Pols was not desirable because
the subscribers would be inconvenienced and all disputes
F
should be resolved through mutual negotiations. It was also
provided that if the dispute could not be resolved, then 10 days'
notice of disconnection should be given to the erring party with
a copy to the Authority. In the event of non-intervention by the
Authority, the aggrieved party could disconnect the Pol or G
approach the Authority for determination of the matter.
6.3. BSNL filed Appeal No.2/2004 for striking down the
. aforesaid direction on the ground that only TDSAT was vested
with the jurisdiction to decide the disputes and the Authority had
H.
1016
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[2013] 12 S.C.R.
A no jurisdiction in the matter. TDSAT allowed the appeal and
held that the Authority did not have the jurisdiction to entertain
dispute between the service providers. TDSA"'" noted that the
words "dispute" and "determination" have been used in the
direction iSStled by the Authority, referred to the judgment of this
B Court in Cellular Operators Association of India v. Union of India
(2003) 3 SCC 186 and held that the jurisdiction of TDSAT is
quite wide and is circumscribed only by the three instances, i.e.,
disputes before the MRTP Commission, Consumer Forums
and those under Section 78 of the Telegraph Act.
c
6.4. The Authority filed Review Petition No. 2/2004 and
argued that while the Authority can be faulted for the use of
words "dispute" and "determination", its power to intervene
cannot be questioned. Another plea taken by the Authority was
that the regulations framed under Section 36 are in the nature
D of subordinate legislation and validity thereof cannot be
questioned before TDSAT. The review petition was dismissed
by TDSAT vide order dated 10.8.2004 reiterating that it had
jurisdiction to entertain dispute relating to validity of regulations.
E Civil Appeal Nos. 3298 and 4529 of 2005
7.1. These appeals are directed against order dated
27.4.2005 passed by TDSAT in Appeal Nos. 11 and 12 of 2002
filed by BSNL and MTNL respectively, challenging Clause 3.1
of the Telecommunication Interconnection (Reference
F Interconnect Offer) Regulation, 2002 (2 of 2002).
7.2. In exercise of its powers under Section 36 read with
Section 11(1)(c) and (d) of the unamended Act, the Authority
prescribed revenue sharing for service providers under the
G Calling Party Pays regime on 17.9.1999. This was challenged
before the Delhi High Court. In its judgement [MTNL v. TRAI
(supra)], the High Court observed that the Authority has no
power to change or vary rights of parties under contracts or
licenses.
H
BHARAT SANCHAR NIGAM LTD v. TELECOM
1017
REGULATORY AUTH. OF INDIA [G.S. SINGHVI, J.]
7.3. After the judgment of the High Court, the Act was
A
amended by Ordinance dated 24.1.2000 and Section
11 (1 )(b)(ii) was inserted to enable the Authority to fix the terms
and conditions of intercon.nectivity between the service
providers.
7.4. In exercise of the power vested in it under Section 36
read with Section 11 (1 )(b)(ii), (iii) and (iv), the Authority framed
the 2002 Regulations. Under Clause 3.1 of these regulations,
B
the service providers with significant market share were
required to publish their Reference Interconnect Offer (RIO)
C
within 90 days of the issue of the Regulations with prior
approval of the Authority. The 2002 Regulations stipulate the
broad framework, structure and provisions on which the service
provider is to make an offer of interconnection with other service
providers. BSNL submitted the proposed RIO on 12.7.2002.
MTNL also submitted proposed RIO sometime in 2002. The
D
RIOs of BSNL and MTNL were approved with certain changes
effected vide identically worded letters dated 9.10.2002.
7.5. BSNL and MTNL filed Appeal Nos. 11 and 12/2002
challenging letters dated 9.10.2002 issued by the Authority. It
E
was contended inter a/ia that the Authority did not have the
power to frame such a regulation. They argued that the changes
suggested in the RIO were non transparent and under the garb
of the regulations, the Authority cannot be conferred power to
fix the terms and conditions of interconnectivity which BSNL and
F
MTNL can offer to other service providers. Clause 3.1 was
challenged insofar as it had been interpreted to take away the
statutory right to appeal as granted under the Act.
7.6. TDSAT disposed of both the appeals vide order
dated 27.4.2005. TDSAT extensively referred to the orders
G
passed in Review Petition No.2/2004 in Appeal No.2/2004
(BSNL v. TRAI) and Appeal No.3/2005 as also the order passed
by the Delhi High Court wherein it was held that TDSAT is
empowered to hear appeals involving challenge to the validity
of the regulations framed under Section 36. TDSAT then held
H
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SUPREME COURT REPORTS
(2013] 12 S.C.R.
A that even after amendment of the Act, the Authority does not
have the power to amend or override the terms and conditions
of the interconnect agreements executed by the service
providers.
8 Civil Appeal Nos. 3299, 6049 of 2005 and 802 of 2006
8.1. These appeals have been filed against order dated
3.5.2005 ofTDSATwhereby it allowed Appeal No.31/2003 and
partly allowed Petition No.20/2004 and quashed direction dated
22.7.2003 issued by the Authority on the premise that it did not
C have the power to override and make direct interconnectivity
mandatory.
8.2. Direct connectivity between different service providers
was introduced in light of NTP 1999 and the same was provided
D for in the license agreements of existing licensees through an
amendment on 29.1.2001 as per DoT letter dated 9.8."2000
which stated that direct connectivity was permitted for the
purpose of terminating traffic on the basis of mutual
agreements. In the meanwhile, on 29.9.2000 BSNL was
E granted license to provide cellular mobile services and it
commenced its Cellone Cellular Services in October 2002.
8.3. The Act was amended vide Ordinance dated
24.1.2000 to include the power to fix the terms and conditions
of interconnectivity between service providers (Section
F 11(1)(b)(ii) of the amended Act).
8.4. The Authority issued Telecommunication
Interconnection (Reference Interconnect Offer) Regulation, 2002
on 12.7.2002 and mooted the idea of an Interconnect Gateway
G Switch. On 15.5.2003, the Authority issued a consultation paper
stating that if one of the parties demands direct connectivity it
needs to be made mandatory through regulations. On
30.6.2003, the Authority called upon stakeholders to discuss
the issue of direct connectivity. Thereafter, the Authority issued
H direction dated 22. 7 .2003 under Section 13 of the Act to all
BHARAT SANCHAR NIGAM LTD v. TELECOM
1019
REGULATORY AUTH. OF INDIA [G.S. SINGHVI; J.]
service providers directing that direct connectivity be made
A
between service providers at the earliest and not later than
three months from the issue of the direction so as to promote
network efficiency and consumer interest.
8.5. BSNL filed Appeal No. 31/2003 challenging direction
8
dated 22.7.2003 on the ground that the same was contrary to
the terms and conditions of the license agreements of basic
and cellular operators.
8.6. The Authority issued IUC Regulations dated
29.10.2003 mandating direct connectivity between service
C
providers. As per clause (b) of Schedule II, charges could be
levied through mutual negotiations but they were to be lower
than Rs.0.20. BSNL issued Circular dated 28.1.2004 levying
charge of Rs.0.4 per minute for a call from cellular mobile
network to another cellular network transited by BSNL. This
D
charge included Rs.0.30 towards call termination and Rs.0.19
towards transit.
8.7. The Authority released Consultation Paper on
Interconnect Exchange cum Inter-Carrier Billing Clearance
E
House for Multi-Operator Multi-Service Scenario on 13.4.2004
mooting Interconnect Exchange as an alternative to direct
connectivity.
8.8. COAi filed Petition No. 20/2004 seeking a direction
against BSNL CellOne to directly connect to the Cellular
F
Service Providers and to strike down the BSNL Circular
requiring payment of Rs 0.19 transit charges which BSNL Basic
Services Division was demanding and collecting.
8.9. TDSAT allowed Appeal No.31/2003 and partly G
allowed petition No.20/2004 and quashed direction dated
22.7.2003 on the ground that the Authority cannot issue
direction resulting in modification of the licence issued after
2000 amendment. TDSAT held that fixation of the terms and
conditions of interconnectivity and ensuring effective
H
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[2013] 12 S.C.R.
A interconnectivity is part of the legislative mandate of the
Authority under Section 11 (1 )(b)(ii) and (iii). TDSAT referred
to its earlier order dated 27.4.2005 passed in Appeal Nos. 11
and 12/2002 and held that the amendment of the Act does not
override the law laid down by the Delhi High Court in MTNL v.
8 TRAI (supra). TDSAT further held that the power vested in the
Authority could be exercised in harmony with the terms of
interconnectivity of licenses issued after the 2000 amendment
and the principles laid down in the High Court judgment. With
reigard to the claim of COAi, TDSAT held that though BSNL was
C justified in collecting Rs.0.19 transit charges from Level I TAX ·
to termination of calls in PSTN network or for providing
interconnectivity to networks of other service providers, it was
not justified in charging transit charges to the extent of Rs.0.19
for transit calls from, Level I TAX to Cellone's Gateway MSC.
TDSAT held that it cannot direct BSNL to implement direct
D connectivity as the Authority did not have the power to override
license terms and conditions for making the same mandatory
either by direction under Section 13 or by regulation under
Section 36.
E Civil Appeal Nos.5834-5836 and 5837 of 2005
9.1. These appeals are directed against order dated
27.4.2005 passed by TDSAT whereby it allowed Petition No.
9 of 2001 filed by Association of Basic Telecom Operators and
others and Petition No.